WASHINGTON, US prosecutors have made clear they believe President Donald Trump committed a crime. But can they prosecute him?
The US constitution does not answer the question, and the majority of the
legal community has long accepted that the answer is no that the
president has immunity from prosecution while in office.
But the issue has never been fully tested, and Trump could force the
Supreme Court to decide it.
Federal prosecutors say the president's former personal lawyer Michael
Cohen, who was sentenced to three years in jail Wednesday, acted in
coordination with and at the direction of Trump in making hush payments to
two women in violation of campaign finance laws in 2016.
Policy against indicting president
But charges have not been filed, and might never be: the Department of
Justice's official policy is the US head of state can't be prosecuted, and
Trump's appointees run the department.
That policy is rooted in a 1973 memorandum from the Justice Department's
Office of Legal Counsel (OLC), written as president Richard Nixon was
targeted in the Watergate investigation.
The president's responsibilities are so onerous that a president may not
be able fully to discharge the powers and duties of his office if he had to
defend a criminal prosecution, it said.
The president is the symbolic head of the nation. To wound him by a
criminal proceeding is to hamstring the operation of the whole governmental
It also noted that since the president controls the Justice Department, he
cannot, in essence, investigate himself. If there are serious charges, it is
up to Congress to impeach him.
In 2000, after president Bill Clinton avoided indictment but faced
impeachment in the Monica Lewinsky investigation, the department renewed its
A new memo said that indicting and prosecuting a sitting president would
prevent the executive from accomplishing its constitutional functions.
'No one is above the law'
Democrats in Congress are questioning that position: I think the Justice
Department needs to reexamine that OLC opinion, Congressman Adam Schiff
said on CNN Wednesday.
I don't think that the Justice Department ought to take the position
that a president, merely by being in office, can be above the law.
Legal experts, including former Justice officials, also say the policy is
not so clearcut.
Whether or not a president can be indicted or named as an unindicted co
conspirator should not be considered a settled question, Walter Dellinger, a
former OLC head, wrote in a June analysis on the Lawfare website.
He noted that a grand jury named Nixon as an unindicted coconspirator in
The fact that it is permissible to name a sitting president as unindicted
coconspirator, moreover, tends significantly to undermine the only argument
against indicting a sitting president.
When special prosecutor Ken Starr investigated Bill Clinton in the 1990s,
he was advised by legal scholar Ronald Rotunda that it is proper,
constitutional and legal for a federal grand jury to indict a sitting
In this country, no one, not even President Clinton, is above the law,
Indictment, yes; trial, unlikely
Neil Katyal, a former top Justice Department lawyer, said that, logically,
a president can't be immune from prosecution if he broke the law to win an
election otherwise that would incentivize doing just that.
He also notes that the Justice memos do not give the president immunity
from be charged with a crime by states.
In addition, he said, Special Counsel Robert Mueller, who leads the Russia
collusion investigation, can request an exception to the memos if the
attorney general agrees to act against the president who appointed him.
At the same time, Katyal points out, even if a president can be indicted,
he probably cannot be put on trial until he is out of office.
An indictment would serve to avoid the statute of limitations on alleged
crimes, enabling a trial after the president steps down.
For Trump, though, that would be more incentive to run for a second term in
Source: Bangladesh Sangbad Sangstha (BSS)